Encryption and the Privilege Against Self-Incrimination: What Happens When a Suspect Refuses to Divulge a Password

Abstract

The use of encryption has embedded itself in everyday life. This has consequences for law enforcement, which is increasingly encountering it in the performance of its duties. This article examines what happens when law enforcement demands the password to an encrypted device and the suspect refuses to provide that password on the basis that to do so will be a breach of the privilege against self-incrimination. While only a small number of Australian cases have considered this question, there is an extensive body of case law in the United States. Canada and England and Wales have also considered this issue. This article examines how those jurisdictions have dealt with this issue and identifies the lessons that Australian courts can take from their experience.

Keywords: encryption, privilege against self-incrimination, evidence, password